Law360 - Learning From This Year's Legal Industry Discrimination Suits
In 2022, female attorneys continued to file lawsuits against their employers — whether in private practice or government service. Most of the cases were resolved by settlements in undisclosed amounts.
The main causes of recently filed actions were for discrimination in pay and promotion, as well as sexual harassment. As discussed in the selected cases below, COVID-19-related terminations and law firm mergers created even more opportunity for such claims.
Cases against public employers increased in number, including a new case asserting claims on behalf of multiple female attorneys, as both a collective and class action. The fact that a woman may head up the legal office did not immunize at least one organization from suit. In addition, a new matter of particular concern was a formal, public complaint by a disciplinary authority seeking to impose discipline upon an attorney for conduct constituting sexual harassment.
The actions you can take to reduce these claims are discussed in closing. Public and private entities that employ female attorneys should heed this advice not only to limit the risk of having to defend such lawsuits and complaints by disciplinary authorities, but also to make the workplace a more welcoming environment for female attorneys.
The Landscape
In 2021, there were over 8,000 female lawyer departures from the profession. The pandemic seems to have exacerbated the gender inequalities in the profession, which have long existed. For example, the American Bar Association reported female attorneys earn $467 less per week than male counterparts.
For many years, law firm clients have been seeking information about the number of women in the workplace and, more specifically, those assigned to do their work. Now, more clients are asking for numbers on promotion of women as well as information about the distribution of work.
With women leaving the profession, the challenge to provide legal teams balanced by men and women is even more challenging. In addition, sexual misconduct and harassment still happen on a daily basis. The victims, who are overwhelmingly women, often do not report the incidents because they do not believe there will be any consequences for the perpetrator.
Cases Against Private Firms
The 2022 cases against private firms involved pay inequities, failure to promote, harassment, retaliation for complaining, and leave policy violations.
For example, in an ongoing COVID-19-related case filed in March 2022 in the U.S. District Court for the Eastern District of Pennsylvania, the plaintiff in Cassidy v. Pond Lehocky Giordano LLP sued for violation of Title VII of the Civil Rights Act and violation of the Equal Pay Act as well as associated claims under state and local law. Maureen Cassidy was a coverage attorney in the firm's workers' compensation department. Most of the first-chair attorneys in the workers' compensation department were male (six out of seven).
The firm allegedly failed to provide Cassidy with mentoring, access to partners, career advancements and networking opportunities provided to male attorneys. Inevitably, that favorable treatment resulted in the promotion of a less qualified man to a first-chair position when a vacancy occurred. In addition, Cassidy was paid at a rate less than the rate paid to male attorneys.
Downsizing as a result of the pandemic resulted in her termination with seven other female coverage attorneys reducing their ranks to three, while six (of nine) male attorneys were retained. So, eight out of 11 female attorneys were terminated while only three of nine male attorneys lost their positions. She also claimed that she was not paid fees for referrals and other cases.
A complaint filed in November 2022 in the Superior Court of New Jersey alleged discrimination resulting from a merger — an infrequent claim. In Tyris v. Delany Law PC, plaintiff Sophia G. Tyris contested as discriminatory the firm's failure to invite her to join a new firm formed by merger, when every male attorney received such an offer.
Tyris was hired by Delany Law in October 2021 with eight years of experience. She announced in April 2022 that she was pregnant and later advised the firm that she would begin her maternity leave on Oct. 17, 2022. In October, she was the only female attorney at the firm.
On Oct. 7, the plaintiff received an email advising that due to "unprecedented staffing shortages" in the legal field, "Delany Law will be dissolving as of November 1, 2022." She later learned that every other attorney working for Delany Law had already been interviewed or invited to interview for employment at the law firm of Marshall Dennehey Warner Coleman and Goggin PC and all of the remaining attorneys were hired by Marshall Dennehey except for the plaintiff, who was never even interviewed.
On Oct. 20, a press release announced that Delany Law was "pairing," "join[ing] forces with" and had a "new home" at Marshall Dennehey. The plaintiff's employment was terminated on Nov. 1. Based on her termination, Tyris alleged claims for gender and pregnancy discrimination under the New Jersey Law Against Discrimination. She also averred that she was paid less than men performing substantially similar work, in further violation of state law.
Cases Against Public Employers
Knox v. Contra Costa County was a complaint filed in 2020 in the U.S. District Court for the Northern District of California by five female deputy district attorneys alleging gender and age discrimination and retaliation.
An interesting twist in this case was that the head of the district attorney's office was a woman, Diane Becton. The plaintiffs also alleged that women were passed over for promotion in favor of less qualified men. They claimed that women had to work in the office years longer than men before being assigned to the homicide unit.
They further complained that women were denied the opportunity to advance their career because they were not assigned to training and leadership roles. They averred that Becton promoted "significantly less qualified and less experienced men." As a visual symbol of the discrimination, junior male attorneys and investigators were given larger window offices; more qualified female attorneys had to take smaller offices without windows.
The plaintiffs also averred that less experienced men were supervising higher ranking, advanced-level female prosecutors. The plaintiffs also noted that the situation did not exist in reverse — no less experienced female prosecutors supervised advanced-level male prosecutors. The district court issued a long, detailed opinion denying the defendant's motion for summary judgment and ordering that the case be tried. Shortly thereafter, the case settled for $2.2 million.
A new case containing similar allegations of unequal pay and sex discrimination was filed in August 2022 in the U.S. District Court for the Eastern District of Pennsylvania by three female former and current assistant public defenders against the Public Defender's Office in Delaware County, Pennsylvania. The Cavanagh v. County of Delaware complaint even included a chart listing differentials, which allegedly continued at least through 2020, in pay increases awarded to similarly situated males and females in the Public Defender's Office.
An unusual background fact was that the pay differential was discovered from information provided by the Public Defender's Office to a union, the United Auto Workers International Union, certified in August 2020, as the bargaining unit representative of the staff attorneys in the Public Defender's Office. The plaintiffs heavily relied on that data and averred that "the wage information disclosed to the Union showed a substantial, systemic, enduring and continuing wage disparity between various female and male attorneys, including Plaintiffs."
The claims in that action included collective claims under the pay discrimination statutes and class claims for sex discrimination and civil rights violations.
Case Involving Attorney Ethics Office
Urban v. New Jersey Office of Attorney Ethics is a case filed in the Superior Court of the State of New Jersey Law Division in September 2022 alleging additional retaliation by the Office of Attorney Ethics in a continuing saga that began in 2019.
In January 2015, Melissa Urban was hired as first assistant counsel for the Disciplinary Review Board. She transferred to a deputy counsel position, downgraded from the deputy chief counsel position, but with all of the additional responsibilities. She was not hired for the position of first assistant ethics counsel and filed a claim in April 2018 contesting that decision as sex discrimination. She also was denied the position of deputy director in May 2018.
The initial lawsuit is still pending and was pending in October 2020, when Urban applied for the position of chief counsel. The posting was amended twice allegedly to allow disqualified candidates to remedy their deficiencies or to increase the pool of candidates.
Even so, in November 2020, Urban was disqualified from further consideration for the position; although her cover letter stated that she had 14 years of management experience, she was disqualified without further inquiry because certain experience was "deemed not to meet the ... definition of managerial experience." Her experience with respect to her prior application for the position of deputy director was similar.
Such an organization, which enforces the Rules of Professional Conduct, should be super-vigilant in complying with the employment discrimination laws given Model Rule of Professional Conduct 8.4(g) and state variations discussed below, including the specific rule in New Jersey.
Disciplinary Action Brought Against Former AUSA Based on Harassment of Legal Intern
A unique case was filed in August 2022 before the Board of Professional Conduct of the Supreme Court of Ohio by disciplinary authorities. The public disciplinary complaint for violation of the Rules of Professional Conduct was asserted against a former assistant United States attorney in Ohio by the Ohio Office of Disciplinary Counsel for conduct alleged to constitute sexual harassment.
In Disciplinary Counsel v. Bennett, it is alleged that attorney "J.S." worked as an intern at the Ohio United States Attorney's Office from May 2017 to November 2019. Mark S. Bennett, an assistant United States attorney, allegedly made sexually inappropriate comments about J.S. and discussed his marital sex life.[50] Bennett allegedly requested that J.S. send him nude photos of herself.
It is also alleged that Bennett inappropriately and intentionally touched J.S. Bennett allegedly texted J.S. inquiring into her sex life and commenting on her body. It is alleged that these actions violate Rule 8.4(h) of the Ohio Rules of Professional Conduct, which prohibits a lawyer from "engag[ing] in any other conduct that adversely reflects on the lawyer's fitness to practice law."
Bennett resigned as a result of an investigation by the U.S. Department of Justice into his conduct, which led to a report by the DOJ to the Ohio Office of Disciplinary Counsel. Bennett also self-reported his actions to that office.
Disciplinary Action Brought Against Former AUSA Based on Harassment of Legal Intern
A unique case was filed in August 2022 before the Board of Professional Conduct of the Supreme Court of Ohio by disciplinary authorities. The public disciplinary complaint for violation of the Rules of Professional Conduct was asserted against a former assistant United States attorney in Ohio by the Ohio Office of Disciplinary Counsel for conduct alleged to constitute sexual harassment.
In Disciplinary Counsel v. Bennett, it is alleged that attorney "J.S." worked as an intern at the Ohio United States Attorney's Office from May 2017 to November 2019.[49] Mark S. Bennett, an assistant United States attorney, allegedly made sexually inappropriate comments about J.S. and discussed his marital sex life. Bennett allegedly requested that J.S. send him nude photos of herself.
It is also alleged that Bennett inappropriately and intentionally touched J.S. Bennett allegedly texted J.S. inquiring into her sex life and commenting on her body. It is alleged that these actions violate Rule 8.4(h) of the Ohio Rules of Professional Conduct, which prohibits a lawyer from "engag[ing] in any other conduct that adversely reflects on the lawyer's fitness to practice law."
Bennett resigned as a result of an investigation by the U.S. Department of Justice into his conduct, which led to a report by the DOJ to the Ohio Office of Disciplinary Counsel. Bennett also self-reported his actions to that office.
Fallout
The ramifications of such conduct are many. First, if established, they exemplify lawyers violating federal and state law, laws that they are bound to uphold as licensed professionals. Second, they showcase lawyers violating core values of equity for female lawyers. Third, they generate extensive publicity which leads to significant reputational risk.
Fourth, and a factor many attorneys apparently overlook, is that they present an opportunity for disciplinary action against the lawyers involved, in addition to any damages that might be established in the civil cases brought against them.
Indeed, Ohio is not alone in its prohibition of such conduct. American Bar Association Rule 8.4(g), which has been adopted in some form by over 20 jurisdictions across the country, specifically states that it is professional misconduct to:
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This Paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The Cure
Risks of defending such claims can be greatly reduced by taking steps in the four specific areas identified below.
Be careful with what you say.
Lawyers must be trained to be as careful with what they say in the workplace as what they present to a court. They should not make promises they cannot or will not keep. They should not make unsolicited comments about the impact of parenting on lawyering or on a woman's place in the law.
They must be consistent in messaging — they should not ask someone to participate in marketing and then criticize the lawyer for low billable hours. They should not make assumptions about an attorney's availability to work on a time-sensitive project. In particular, they should not assume a female attorney — particularly one with a young child — would not be available for group meetings or conferences, or would not interested in working on a new matter because it is time-sensitive or requires long hours.
Lawyers should extend the same invitations to female attorneys that are being extended to male attorneys at the same level.
Be careful with what you do
Men and women should be treated the same way in connection with employment and promotion decisions. Salaries should be the same for those at the same level performing work of the same skill, effort and responsibility and under similar working conditions. If performance issues develop, speak to the lawyer and establish a plan designed to improve the performance.
Lawyers who return from family leave — or any other type of leave — should be treated the same way as those similarly situated to them. Complaints should not be minimized. All complaints received should be investigated. Of course, the extent of the investigation may vary based on the type of complaint.
In addition, lawyers must not become more critical of someone or otherwise treat a person differently after that person has submitted a complaint.
Enforce policies
All lawyers must meaningfully comply with the organization's equal employment opportunity policy. The importance of the anti-harassment policy and its avenues for reporting unwelcome conduct should be emphasized, compliance by all attorneys should be required and training on a regular basis should be provided.
Promotion and termination decisions should be based on objective criteria. Leave policies should be easily accessible and should not be discriminatory or include assumptions about the identity of the "primary caregiver."
Establish relationships
Establishing meaningful professional relationships may be the key factor. Develop close, sustained relationships between junior lawyers and senior attorneys, which lead to valuable teamwork and open lines of communication.
Attorneys should collaborate about objectives and timelines to allow for some flexibility. Performing periodic check-ins with all female attorneys and particularly with those returning from leave would be valuable in this effort. Senior attorneys and firm leaders should publicly support these efforts. When necessary, senior attorneys should become involved to manage client expectations and conduct.
Taking these steps can lead to very rewarding results and a more productive work environment. Include them in your business planning for 2023.